Leena Mathew v. Kerala Shipping Corporation — 1988 DIGILAW 2 (KER)

Judgment :- 1. The plaintiffs are the appellants. 2. In the action instituted under the Fatal Accidents Act, the appellants sought to recover from the respondent compensation for the damage, they had suffered by reason of the death of Sri. P. C. Mathew, the husband of the first plaintiff and the father of the second plaintiff, who was the chief steward of the ship, M.V. Kairali, which got lost in the Arabian sea with the crew on board. On the suit being dismissed, the appeal has been filed. 3. The relevant facts can be comparatively briefly stated, in as much as the only decision which is under challenge is the one relating to the point covered by issue No. 4 namely: "Whether the plaintiffs are entitled to get compensation from the defendant for the missing of Mr. P. C. Mathew with the vessel M. V. Kairali under the provisions of the Fatal Accidents Act? If so, to what extent?" This part of the action is based on negligence. The pleadings in the case in this regard disclose the following. The radars installed in the ship were defective and hence not functioning. The captain of the ship therefore refused to take the loaded ship into the high seas. The captain however, was compelled to have the sail with the defective radars. The defendant therefore knew, that voyage through the high seas, which, at the relevant time was indisputably turbulent, without the radars will be dangerous. The ship on the 1st, 2nd and 3rd July 1979 had sent message to the defendant. It is clear from these messages that the captain wanted information regarding the the place of bunkering and the arrangements made to take the fuel required. It is also seen from these messages that the captain bad intimated the defendant, the damage caused to the exhaust pipe and the expected time of arrival (STA) as 8th July, at Djibouti. The message dated 3-7-1979 is the last message, the defendant had received. Though there was no message from the vessel on the subsequent days, the defendant did not take any steps to locate the ship till 9-7-1979. The defendant started enquiring about the vessel only on 9-7-1979. After the 4th, the first message, the defendant had sent, was the one which was sent on 9-7-1979 to its agent, at Djibouti. Though there was no message from the vessel on the subsequent days, the defendant did not take any steps to locate the ship till 9-7-1979. The defendant started enquiring about the vessel only on 9-7-1979. After the 4th, the first message, the defendant had sent, was the one which was sent on 9-7-1979 to its agent, at Djibouti. Only after 10th, the defendant decided to take steps to locate the ship. It moved the authorities like the Director General of Shipping and agents who are competent to render assistance in the search of the ship, only on the 13th. The search by the Navy, was started only on the 14th July. These facts are not disputed. The defendant bad not pleaded nor produced any evidence to show that it had acted in accordance with the general and approved practice prevalent in the business. The searches aforesaid were not successful and this resulted in the Central Government appointing the Chief Judicial Magistrate, Ernakulam, in exercise of the powers conferred on the Central Government under S.361 of the Merchant Shipping Act. 1958. for short the Shipping Act, to make a formal investigation into the supposed loss of the ship with 51 persons on board, in the Abrabian sea on or about the 3rd July, 1979. The Chief Judicial Magistrate after enquiry gave the report, which is marked as Ext. B1. 4. The Chief Judicial Magistrate in Ext. B1 has found that the radars were not functioning and that the captain therefore bad refused to sail the vessel. This finding of the Chief Judicial Magistrate is based on the letter, marked as Ext. B7, in Ext. B1, dated 30-6-1979, the Captain of the ship had sent to his wife who was examined as witness No. 19. It is clear from this letter that the radars were defective and that the radars therefore required to be replaced, before the ship left the shore, but for want of time it was not done. The two radars were thus not operational, the Chief Judicial Magistrate has found. The Chief Judicial Magistrate has also found that the radar, as a navigational aid, is a must for a voyage. This finding is based on the evidence, the third officer of the ship had given, in the enquiry. The two radars were thus not operational, the Chief Judicial Magistrate has found. The Chief Judicial Magistrate has also found that the radar, as a navigational aid, is a must for a voyage. This finding is based on the evidence, the third officer of the ship had given, in the enquiry. After evaluating the evidence available on record the Chief Judicial Magistrate concludes thus: "It has to be borne in mind that the Ship sailed in monsoon, so that it is but natural to expect that there will be fog. So in sending the ship with a defective Radar there is negligence on the part of the owner". Regarding the delay in taking proper and prompt steps to locate the ship, the Chief Judicial Magistrate has found as follows: "However that be, the evidence on record goes to show that daily messages are sent from the ship. When no message was received from the ship after the 3rd it is but natural that as a prudent owner the Corporation should have made some enquiries in that direction but nothing was done until the 9th. Even the agent at Djibouti namely Mitchellcotts had alerted the Corporation by a message dated 7th July asking the Corporation to advice the Captain to inform the agent about the expected time of arrival at Djibouti For the first time it was only on the 9th July that the Corporation sparred to action and sent a message to the agents at Dijibouti enquiring whether "Kairali" had bunkered and sailed. Earlier the Captain had clearly indicated as per the messages sent on 2nd and 3rd that the ship was due to arrive at Djibouti on the 8th. The Corporation should have acted with some foresight and thought and in any event should have taken some steps much before the 9th". In conclusion the Magistrate has stated thus: "The mishap had obviously taken place on the 3rd night or 4th morning so that by the time, the search operations started on the 12th, whatever traces and whosoever survives left behind would have been obliterated by the rough seas. So in having delayed the search operations, there is negligence on the part of the owner, the Corporation". The above findings in Ext. So in having delayed the search operations, there is negligence on the part of the owner, the Corporation". The above findings in Ext. B1 were pressed into service by the plaintiffs to show that the respondent had been negligent and but for this negligence the incident would not have happened and the plaintiffs would not have suffered the damage. 5. The learned counsel for the defendant however, submits, the plaintiffs cannot rely on the evidence tendered before the Chief Judicial Magistrate without examining the witnesses afresh in the suit as the evidence tendered before the Chief Judicial Magistrate would not automatically become evidence in the suit. In support of this argument he relied on a decision of the Calcutta High Court in Indian Airlines v. Madhuri Chowdhuri (AIR 1965 Cal. 252). The Calcutta High Court has held thus: "Held that on those facts the report must be held properly and duly proved under S.81 of the Evidence Act. Bult although the report was admissible and bad been duly proved as a fact of this case, yet the evidence tendered before the Court of Enquiry was not necessarily evidence in the suit unless the questions and answers put to the witnesses were put to those witnesses who deposed at the trial and only those portions of that evidence before the Court of enquiry which was tendered before the witness 'concerned would be evidence in the suit and not otherwise. This report, however, did not become evidence under S.2 and 3 of the Commercial Evidence Act, 1939". (Head Notes) This decision, we are of the view, does not lay down any principle disentitling the appellant to rely on Ext. B1 produced and marked properly on the side of the defendant. It should in this connection be noted that what the Calcutta High Court meant was that the evidence tendered before the enquiry officer cannot be pressed into service by the very party who had produced the report in evidence to establish his case unless the evidence tendered by the witnesses was again put to the witnesses examined in the case. Here the position is different. The plaintiff against whom the evidence was tendered, relied upon it. It is relevant in the context to consider what is the nature of the investigation conducted by the Chief Judicial Magistrate. Here the position is different. The plaintiff against whom the evidence was tendered, relied upon it. It is relevant in the context to consider what is the nature of the investigation conducted by the Chief Judicial Magistrate. A reference in this connection to some of the sections in Part XII of The Shipping Act, is necessary. S.365 confers on the Chief Judicial Magistrate all the powers of a criminal court to compel the attendance and examination of witnesses and the production of documents. He has the power to arrest witnesses and also to enter ships as provided for under S.367. Under S.168 he has the power to commit any person for trial before the proper court whenever in the course of investigation or enquiry it is found that such person involved in the enquiry has committed in India any offence punishable under any law in India. Such persons can even be ordered to be arrested. Similarly be can bind over any person to give evidence at the trial. S.370 confers on the Chief Judicial Magistrate power to cancel or suspend the certificates granted to the roaster, mate or engineer by the Central Government if he, after enquiry, finds that loss of life etc. was caused by the wrongful act or default of such master, mate or engineer. Under S.371, he has the power to censure the master, mate or engineer. He has also the power (S. 372) to remove a master and appoint a new master provided the conditions stipulated in the section exist. The Chief Judicial Magistrate conducting the investigation therefore is bound to act judicially, and as such, when the Judicial Magistrate, after careful investigation, after taking evidence, comes to the conclusion that it was due to the negligence of the owner, master, mate or engineer that the ship and the crew on board got lost in the voyage, it is futile to contend that the said decision would not affect their rights. It is axiomatic that such decisions of such judicial functionaries would affect the rights of parties against whom such decisions were given, on a full enquiry, after taking all the evidence. The Bombay High Court while construing S.249 and allied provisions of the Merchant Shipping Act, 1923. corresponding to S.361 and allied sections of the Shipping Act, in Pandyan Insurance Co. Ltd. v. K. J. Khambatta (AIR. 1955 Bombay 241) has taken a similar view. The Bombay High Court while construing S.249 and allied provisions of the Merchant Shipping Act, 1923. corresponding to S.361 and allied sections of the Shipping Act, in Pandyan Insurance Co. Ltd. v. K. J. Khambatta (AIR. 1955 Bombay 241) has taken a similar view. Speaking through Chagla C.J., the Division Bench has held thus: "When an important tribunal setup under this Act, after careful investigation, after taking evidence, after consulting the assessors, conies to the conclusion that the loss was due to negligence or misconduct of any particular officer or of the shipping company, that decision must affect the rights of the parties against whom the decision is given. It is a very serious thing, for instance, in this very case, if the learned Chief Presidency Magistrate were to hold that the Malabar Steamship Company was guilty of putting on the sea an unseowarthy ship or overloading it with cargo. It is suggested that that determination by the learned Chief Presidency Magistrate on a full inquiry, after taking all the evidence, does not affect respondent No. 6 at all? " With respect we agree with the above view. The decision/finding in Ext. B1 that the mishap was occasioned due to the negligence on the part of the defendant, is therefore binding on the defendant. 6. Considering this aspect from another angle, it cannot be disputed that Ext B1 is a public record and being a public record the entries therein, stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty is relevant evidence. The findings in Ext. B1 accordingly come within the ambit of the 1st part of S.35 of the Evidence Act. (See P.C.P. Reddiar v. S. Perumal. AIR 1972 SC 608 and Kanwarlal Gupta v. Amarnath Chawla and others, AIR 1975 SC 308). Ext. B1 therefore is entitled to great consideration in so far as it supplies information of material tacts. In the peculiar circumstances of the case, the findings in Ext. B1 can be treated as binding on the defendant; in any event its probative value cannot be ignored and therefore it can be regarded as a corroborative piece of evidence and as such could be considered along with other evidence for the purpose of deciding the issue. 7. For another reason also the above argument of the counsel for respondent cannot be countenanced. 7. For another reason also the above argument of the counsel for respondent cannot be countenanced. As observed by the Supreme Court in Purushothama's case "once a document is properly admitted the contents of that document are also admitted in evidence" though the contents may not always be conclusive evidence. Ext. B1 was produced by the defendant. The defendant therefore is bound by the findings in Ext. B1 . It is all the more so because the defendant accepting Ext. B1, had even paid the wages and compensation, the legal heirs of the crew on board at the time of the mishap, were entitled under the various provisions of The Shipping Act. The defendant therefore is estopped from taking up the stand that the findings entered in Ext. B1 are not binding on it. 8. From what is stated above it is clear that at the relevant time the radars installed in the ship were defective and hence it was not safe to take the vessel out to the sea, that the vessel was under the exclusive management of the defendant and that the occurrence, which resulted in the loss of the ship and the crew including Mathew on board, was such that in the ordinary course of things, the mishap would not have happened, had the defendant been prompt in taking steps to locate the ship and save the men on board. Moreover the possibility of the danger emerging was always there. The defendant however, did not take any preventive actions to avert the accident. No convincing explanation from the defendant as to why or how the occurrence happened, is forthcoming. That the respondent failed to take proper care when care was needed, is sufficiently proved by Ext. B1 . The circumstances mentioned above are eloquent of the negligence of at least somebody under the control of the defendant who brought about the state of things complained of. These circumstances are more consistent, without further explanation, with the negligence of the defendant than with any other reason for the accident. We therefore are of opinion that the doctrine of res ipsa loquitur squarely applies here A reference in this connection to the observations of Kennedy L. J. in Russell v. L. & S.W. Ry (1908) 24 T.L.R. 548 at 551 is profitable. We therefore are of opinion that the doctrine of res ipsa loquitur squarely applies here A reference in this connection to the observations of Kennedy L. J. in Russell v. L. & S.W. Ry (1908) 24 T.L.R. 548 at 551 is profitable. The learned judge has stated the principle thus: "The meaning, as I understand, of that phrase is this, that there is, in the circumstances of the particular case, some evidence which, viewed not as a matter of conjecture, but of reasonable argument, makes it more probable that there was some negligence, upon the facts as shown and undisputed, than that the occurrence took place without negligence. The res speaks because the facts stand unexplained, and therefore the natural and reasonable, not conjectural, inference from the facts shows that what has happened is reasonably to be attributed to some act of negligence on the part of somebody; that is, some want of reasonable care under the circumstances. Res ipsa loquitur does not mean, as I understand it. that merely because at the end of a journey a horse is found hurt, or somebody is hurt in the streets, the mere fact that he is hurt implies negligence. That is absurd. It means that the circumstances are. so to speak eloquent of the negligence of somebody who brought about the state of things which is complained of". To put it differently "the circumstances are more consistent, reasonably interpreted without further explanation, with your negligence than with any other cause of the accident happening". (See also. State of Punjab v. M/s Modern Cultivators. AIR. 1965 SC. 17; Municipal Corporation of Delhi v. Subhagwanti AIR. 1966 SC. 1750: Syad Akbar v. State of Karnataka AIR 1979 SC. 1848 and K. V. N. Shenoy v. The Cannanore District Motor Transport Worker's Co-operative Society, (1981) 2 ILR. (Kerala) 567. Page 349, para 5-58 of Charlesworth and Percy on Negligence 7th edition and also para 10-112 of Clerk and Lindsell on Torts, 15th edition), 9. To sum up: The irresistable inference deducible from the facts already found, is that the injury complained of was the result of the negligence on the part of the defendant. The cause of the accident is not known and no reasonable explanation as to the cause of the accident is given by the defendant. The incident tells its own story of negligence on the part of the defendant. The cause of the accident is not known and no reasonable explanation as to the cause of the accident is given by the defendant. The incident tells its own story of negligence on the part of the defendant. The story so told is clear and unambiguous. It is to these cases the maxim res ipsa loquitur applies. 10. The Supreme Court in Municipal Corporation of Delhi case (AIR. 1966 SC. 1750) has also declared that this doctrine is an exception to the normal rule that it is for the plaintiff to disprove it. The Supreme Court has further observed that "where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in his defence, must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part". 11. The learned counsel for the defendant therefore argued that the evidence adduced in the case proves positively that the defendant has not been negligent and if that be so, he further contended, that the doctrine of res ipsa loquitur does not apply here. He argues that the mere occurrence does not necessarily connote negligence. Negligence, according to him, involves breach of duty causing the damage. There cannot be any actionable breach of duty unless it can be shown that at the time of the act the consequences of the act were reasonably foreseeable. The test is objective, the requisite foresight being that of a reasonable man. There cannot be any dispute regarding the first two aspects of the proposition; but in regard to third aspect the position is different. In order to appreciate the argument in respect of the third aspect, one should first understand the law relating to the standard of care, a ship owner should adopt in order to successfully thwart an action in damages based on negligence The ordinary standard of care that is relevant to decide the issue pertaining to negligence is the reasonable care, namely, that of a reasonable man. Alderson B's classic words defining "Negligence" namely, "Negligence is the omission to do something which a reasonable man. guided upon those considerations which ordinarily regulate the conduct of human affairs, would do: or do something which a prudent and reasonable man would not do" is relevant. Alderson B's classic words defining "Negligence" namely, "Negligence is the omission to do something which a reasonable man. guided upon those considerations which ordinarily regulate the conduct of human affairs, would do: or do something which a prudent and reasonable man would not do" is relevant. Even so, the approach to the question shall not be dogmatic. The standard of foresight of the reasonable man is an impersonal test. As Lord Macmillan in Glasgow Corporation v. Muir (1943) A.C. 448, at 457, observed: "It eliminates the personal equation and is independent of idiosyncrasies of the particular person whose conduct is in question. Some persons are by nature unduly timorous and imagine every path beset with lions. Others, of a more robust temperament, fail to forsee or non-challantly disregard even the most obvious dangers. The reasonable man is presumed to be free from both over-apprehension and from over-confidence." As observed by the Privy Council it is not 'the hind sight of a fool but it is the foresight of the reasonable man" that would determine the responsibility (Wagon Mound (No. 1) case), because 'after the event even a fool is wise'. (See Overseas Tankship (UK) Ltd., v. Marts Dock and Engineering Co. Ltd., (The Wagon Mound) (1961) A.C. 388). In cases like this "damages can only be recovered if the injury complained of not only was caused by the alleged negligence but also was an injury of a class or character foreseeable as a possible result of it", Lord Reid in The Wagon Mound (No. 2) case, (1966). ALL E.R. 709, echoing the principle enunciated in The Wagon Mound No.1 case (1961)1 ALL E.R. 404 and Hughes v. Lord Advocate (1963)1 ALL.E.R.7052. Thus foreseeability of a reasonable man becomes the effective test. The standard of care expected of the individual depends upon the circumstances of a given case. In other words there is no standardised 'standard of care' so as to say that the enquiry in an action based on negligence should always be geared to the foresight of the man on the omnibus. The test that would be applied is, as to bow a reasonable man has been found by experience, to act under similar circumstances. "There is no absolute standard, but it may be said generally that the degree of care required varies directly with the risk involved. The test that would be applied is, as to bow a reasonable man has been found by experience, to act under similar circumstances. "There is no absolute standard, but it may be said generally that the degree of care required varies directly with the risk involved. Those who engage in operations inherently dangerous must take precautions which are not required of persons engaged in the ordinary routine of daily life". (Vide Muir's case). Lord Macmillan in Read v. J. Lyons Alo Ltd., (1947) A.C. 156 at 173 has succinctly stated the principle thus:-"The law, in all cases enacts a degree of care commensurate with the risk created". After taking note of these aspects Charlesworth and Percy in their treatise on "Negligence" 7th edition para 6 04, has observed: "In conclusion, to say that standard of care is that of a reasonable man is to beg the question. A tribunal of fact can only be directed to apply the standard of reasonable care, if it is explained what amount of care the law regards as reasonable under the circumstances of the case being tried". It is this principle that is highlighted in the ruling in Whitehouse v. Jordam (1981) I ALL. E.R. 267. The dictum reads: "The test is the standard of the ordinary skilled man exercising and professing to have that special skill. If a surgeon fails to measure up to that standard in any respect ('clinical judgment' or otherwise) be has been negligent". The House of Lords restated this principle in Maynard v. West Midlands RHA. (1985)1 ALL. E.R. 635. 12. Having understood the position thus, let us see whether the defendant has cleared himself of the charge of negligence levelled against him. It can escape the liability only on its successfully showing that it acted in accordance with the general and approved practice. 13. The learned counsel for the defendant submits that the defendant bad taken all precautionary steps to avert the happening. Whether there is any substance in this contention, can be considered only with reference to the pleadings as also the evidence adduced in the case. On going through the pleadings it is clear that the defendant has no case that, although the defendant did not receive any message without which the ship cannot be located, after 4th July, it took steps to locate the ship immediately. On going through the pleadings it is clear that the defendant has no case that, although the defendant did not receive any message without which the ship cannot be located, after 4th July, it took steps to locate the ship immediately. It has come out in evidence that the fully loaded ship without the radars (See Ext. B1) was sailing through a turbulent sea (Ext. BI5). It has also come out in evidence that the exhaust pipe of the ship had got damaged. (Vide Ext. A9 and B6). That the master/captain of the ship in the past used to send message every day to the defendant has been spoken to by pw.3, who had once worked as the third officer of the ship. He has also stated that when the defendant did not receive message on the 4th, 5th, 6th and 7th as a prudent owner, the defendant ought to have taken prompt and immediate steps 'o locate the ship. Here it is profitable to note the following message contained in Ext. B25, the cable register, maintained by the defendant. It gives the details of the first message after the 4th emanated from the office of the defendant. It is to the master of the ship. It reads: "Regret-no information since Third-Stop-Please intimate position-vessel". It is thus clear that no steps to locate the ship were taken till the 10th. It is established by evidence that, despite the message dated 7th July from the agent at Dijbouti that the captain of the ship should be advised to inform the EAT (expected arrival time) the defendant had not taken any steps to find out what was happening to the ship. Steps for search operations were started only on the 12th. The Navy which had been alerted by the Central Government, started the search operations only on the 13th. As a ship owner, the defendant should have alerted at least the internationally reputed organisation. The Lioyds Intelligence, in any event on the 7th when it knew from the message of its agent at Djibouti that the ship bad not given them the 'ETA' Had the defendant taken prompt and proper steps, to locate the ship, at least the members of the crew could have been saved, even assuming that the ship got devoured by the episodic waves as suggested by the defendant. The men on board the ship could remain alive by floating on the water with the aid of the life saving devices available in the ship, for five or six days. Dw1 has stated so in his deposition. This is what be has stated: These circumstances are telling. Dw.1 says that a shipowner is bound to inform the Director General of Shipping of the possible danger, the ship is likely to be in, without any delay. The defendant in the circumstances, must be deemed to have foreseen the danger and the consequential injury to the ship and (be crew on board. However the defendant did not take any steps even to locate the ship. From the circumstances highlighted above, serious risk to ship and the crew on board was not only foreseeable but very likely. It is apposite in this connection to refer to the following observations of Winn L. J. in Arthur Guinners, Son and Co. (Dublin) Ltd. v. The Freshfield owners (1965) p. 294: "The law must apply a standard which is not relaxed to cater for their actual ignorance of all activities outside brewing: having become owners of ships, they must behave as reasonable ship owners". 14. The circumstances indicated above show candidly that the defendant did not behave as a reasonable ship owner. A reference in this connection to the findings in Ext. B1 is relevant. The facts found by the Chief Judicial Magistrate and discernible from Ext. B) as already held, are binding on the defendant. 15. Yet another approach to the issue suggested by the learned counsel for the appellant is this: In any event the defendant is vicariously liable for the negligent act of the captain of the ship. In order that the doctrine of vicarious liability may apply the two conditions that should coexist are: (1) the relationship of master and servant shall exist between the defendant and the person committing the wrong complained of, and (2) the wrong complained of shall be committed by the servant in the course of his employment. In order that the doctrine of vicarious liability may apply the two conditions that should coexist are: (1) the relationship of master and servant shall exist between the defendant and the person committing the wrong complained of, and (2) the wrong complained of shall be committed by the servant in the course of his employment. It may in this context be remembered that a master however cannot be made responsible for the negligence or the wrongful act of his servant because it was committed at a time when be was engaged on his master's business The negligent or wrongful act must be committed, in the course of that business so as to say that it forms part of the tort and not by merely coincident with it. On the facts of this case it is established beyond doubt that the captain proceeded to sea knowing full well that the radars were defective and that the sea, during the relevant period, was rough. With his experience as a sailor he would have reasonably forseen the danger of embarking on a voyage during the Monsoon season with a ship having defective radars. The captain acted negligently in taking the risk. His act of negligence was committed in the course of his official duties as the master of the vessel. The defendant being his employer was thus vicariously liable for the negligence of the captain. 16. We therefore hold that the defendant has not been successful in establishing that the charge of negligence levelled against the defendant, is baseless. The decision of the court below on the issue therefore is vacated. 17. The learned counsel for the defendant then argued that the suit however, is not maintainable for two other reasons: (1) It is barred by limitation and (2) the suit is bad in view of the various provisions contained in The Merchant Snipping Act. These points have been decided against the defendant by the court below. However, neither a cross objection nor an independent appeal challenging the decisions, has been filed by the defendant. The learned counsel for the plaintiff submits that the defendant therefore shall not be allowed to agitate these points in the appeal. These points have been decided against the defendant by the court below. However, neither a cross objection nor an independent appeal challenging the decisions, has been filed by the defendant. The learned counsel for the plaintiff submits that the defendant therefore shall not be allowed to agitate these points in the appeal. Failure to file a cross-objection by defendant, aggrieved by certain decisions against it in the judgment, challenging which, the appeal has been filed, the learned counsel for the plaintiff submits, disentitles the defendant under law to agitate the points covered by the said decisions. The learned counsel for the defendant however, argues that even without filing a cross objection, the defendant is entitled to support the decree in his favour not only on the grounds decided in bis favour but also on any of the grounds decided against him. It has been so provided under Order XLI R.22, the learned counsel submits. The Supreme Court in Choudhary Sahu v. State of Bihar (AIR 1982 SC 98) while interpreting 0.41 R.22 has stated thus: "The first part of this rule authorises the respondent to support the decree not only on the grounds decided in his favour but also on any of the grounds decided against him in the Court below. The first part thus authorises the respondent only to support the decree" (emphasi s supplied) The defendant therefore can press into service the above grounds to support the decree which is in bis favour. 18. Regarding period of limitation: As already stated the suit is instituted under S.1 (A) of the Fatal Accidents Act. The limitation for the suit is two years under Art.82 of the Limitation Act. This Article provides that the limitation for a suit for compensation for damages or death under the Fatal Accidents Act begins to run from the date of the death of the person. From the pleadings in the plaint it is clear that the plaintiffs have not positively stated as to when Sri. P.C. Mathew died. What is stated in the plaint is only this: "In this situation it is not possible to assert that P.C. Mathew died or died as a result of injury. It is also not possible to conclude that Sri. P. C. Mathew was lost over board or missing. P.C. Mathew died. What is stated in the plaint is only this: "In this situation it is not possible to assert that P.C. Mathew died or died as a result of injury. It is also not possible to conclude that Sri. P. C. Mathew was lost over board or missing. However under the provisions of the Merchant Shipping Act 1958 the ship is deemed to have been lost with all hands on board either on 4-7-1979 or immediately thereafter." The defect of want of pleadings regarding the actual death of P. C. Mathew, if any, however, is rectified by the pleadings of the defendant in the written statement. The defendant has admitted that Sri. P. C. Mathew is dead. The exact date of death however, is not known. The plaintiff in these circumstances relied on sub-s. 2 of S.157 of the Merchant Shipping Act to salvage the suit from the plea of limitation. The said sub-section reads: "157. Recovery of wages, etc., of seamen lost with their ship. (1) (2) In any proceedings for the recovery of the wages and compensation, if it is shown by some official records or by other evidence that the ship has, twelve months or upwards before the institution of the proceeding left any port, she shall unless it is shown that she has been beard of within twelve months after the departure be deemed to have been lost with all hands on board either immediately after the time she was last heard of or at such later time as the Court hearing the case may think probable". This sub-section provides that, if it is shown by some official records or by other evidence that the ship has twelve months or upwards before the institution of the suit left any port, she shall, unless it is shown that she has been heard of within twelve months after the departure, be deemed to have been lost with all hands on board either immediately after the time she was last heard of or at such later time as the Court hearing the case may think probable. This section deals with the presumption of the fact of the loss of the ship with all hands on board either immediately after the time she was last beard of or at such later time as the court hearing the case may think probable, if by some official records or by other evidence it is established that the ship had twelve months or upwards before the institution of the proceedings left any port The learned counsel for the defendant argues that the presumption Highlighted in this sub-section however, cannot be pressed into service by the plaintiffs to establish that the suit is instituted within the period of limitation because this provision can be applied only if the proceedings are initiated under the Merchant Shipping Act for recovery of wages and compensation. The scope of the section requires to be considered in this context. This section prescribes only a rule of evidence. This section is founded on the presumption that once 'a state of things' is established by proof the said 'state of things' continue in that state, until the contrary is established by evidence, either direct or substantial or till a different presumption is raised, from the nature of the subject in question. Relying on this section the Chief Judicial Magistrate in Ext. B1 has found that "the 'mishap' bad obviously taken place on the third night or the 4th morning". This finding has not been challenged by the defendant. On the other hand accepting the findings including the above finding in Ext. B1, the defendant had paid the wages and compensation, it is bound to pay the wife and children of the deceased, under the Shipping Act. The defendant therefore is estopped from taking a stand opposing to the findings in Ext. B1 . It is therefore unnecessary to consider the above argument of the defendant that the plaintiffs cannot press into service the provisions contained in Sub-s. 2 of S.157 of the Shipping Act to sustain their plea that the suit is not barred by limitation. Evaluating the evidence including Ext. B 1, the Court below has entered the following findings: "I have already stated that in these cases plaintiffs and the defendant have no knowledge about the date of death of P. C Mathew and K.M. Antony. So S.157 (2) is applicable for presuming the death of P. C. Mathew and K. M. Antony. Evaluating the evidence including Ext. B 1, the Court below has entered the following findings: "I have already stated that in these cases plaintiffs and the defendant have no knowledge about the date of death of P. C Mathew and K.M. Antony. So S.157 (2) is applicable for presuming the death of P. C. Mathew and K. M. Antony. That presumption will arise only after 3-7-1980. So the cause of action arised on 3-7-80. The learned counsel appearing for the defendant argued that S.157 (2) is not an exception contemplated under S.4 to 24 of the Limitation Act. S.4 to 24 will arise when the suit is filed after the prescribed period of limitation. Here the prescribed period is two years from the date of cause of action. Here the cause of action arised on 3-7-80. These suits were riled within two years from the date of 3-7-80 Hence the suits are not barred by limitation." Going by the above findings, the suit filed on 19-6-82 is not time barred It should in this connection be remembered that the defendant has no case that the above finding that Sri. P. C. Mathew and K. M Antony must be deemed to have died on 3-7-1980, is perverse. In fact the above finding is supported by the pleadings is the written statement. Whatever that be the said findings have become final as the defendant has not challenged the same by filing either an independent appeal or a cross objection. In these circumstances we are of the view that the suit is not barred by limitation. 19. Regarding the point that the suit is bad in view of the various provisions contained in the Merchant Shipping Act: It is not the case of the defendant that the Merchant Shipping Act contains provisions prohibiting any action for compensation other than the proceedings envisaged under the said statute. Merchant Shipping Act governs/ controls actions for maritime damage caused by ships whereas general damages which are the result of wrongful acts and so forth of the owners of ships, can be claimed by instituting actions under the Fatal Accidents Act. Merchant Shipping Act governs/ controls actions for maritime damage caused by ships whereas general damages which are the result of wrongful acts and so forth of the owners of ships, can be claimed by instituting actions under the Fatal Accidents Act. The Fatal Accidents At as already stated modifies the maxim of the common law "actio personal is moritum cum persona" namely, the personal actions die with the person of the deceased and those actions now are possible for the benefit of the wife, husband, parent or child of the deceased. These two enactments are special statutes operating in different fields. It therefore follows that the special provisions of the Merchant Shipping Act do not abrogate the rights arising under the Fatal Accidents Act. These statutes should be allowed to operate in the fields allotted to them. The House of Lords in identical circumstances in Seward v. Vera Cruz (1884) 10 A.C. 59 has held so. The question there was whether the Admiralty Court Act, 1861, took away the jurisdiction of Lord Campbell's Act over claims for damages for loss of life. Construing these enactments the House of Lords observed thus:- "Maritime damage by ships is the subject of that legislation; general injuries resulting in loss of life by wrongful acts and so forth, are the subject of the other. It is not very likely that when the legislation goes on such different lines it should be intended indirectly to affect by the one legislation, and in a peculiar manner, a particular case which may or may not arise under the other legislation Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to bold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so" 20. The above argument of the counsel for the defendant therefore is liable to be rejected. 21. The suit is instituted under the Fatal Accidents Act. The above argument of the counsel for the defendant therefore is liable to be rejected. 21. The suit is instituted under the Fatal Accidents Act. As already noted the Fatal Accidents Act lays down only two beads of damages, (1) a right to ask for damages proportionate to the loss caused by the death to the beneficiaries as provided for under S.1 (A); and (2), a right to claim damages for any pecuniary loss to the estate of the deceased as provided for under S.2. No other type of claim for damages is contemplated under the Act. If that be so the claim for damages for suffering mental agony and anxiety by the plaintiffs is not maintainable under the Fatal Accidents Act. The claim for damages highlighted in Para.10 of the plaint namely general damages of Rs. 10,000/- claimed by the plaintiffs for suffering mental agony, loss of consortium, love etc. therefore is not sustainable. The said claim accordingly is rejected. 22. Regarding the quantum of damages claimed (particulars are given in para 10 of the plaint) there is little opposition from the side of the defendant. The damages, subject to what is stated in the preceding para, are accordingly decreed. 23. In the circumstances of the case it is only just and proper if the defendant is directed to pay the court fee, the plaintiff under law is bound to pay, to institute the suit. We do so. For the reasons stated above the appeal is allowed. The judgment and decree of the court below are set aside and the suit is decreed subject to the findings in Para.21 and 22. with costs throughout.